The elderly and infirm routinely delegate control of their finances to family members but more and more Canadians are abusing that power. Can our aging population trust its own children?

BY RISHA GOTLIEB

On June 24, 2007, Tony Budkowski got an unexpected call from his mother’s nursing home in Oshawa. The home’s regular contact was Tony’s sister, Heather, but according to the administrator, Heather had left the country.

He also learned the nursing-home fees had gone unpaid for eight months. “I knew my mother had enough to cover her bills, and my sister, who had been given power of attorney to pay these bills, had full access to Mom’s bank accounts.”

Budkowski started to investigate, but was stymied when he tried to obtain his mother’s banking records. He turned to the Durham Regional Police for assistance. Luckily, his file ended up in the hands of Sgt. John Keating, who Budkowski says is “very passionate” about protecting the vulnerable and the elderly. With Keating’s help, he eventually got the bank to hand over the records. “My sister had made off with our mother’s life savings, leaving her with $270.”

Keating arrested the sister, and on June 10, 2008, she was sentenced to two years house arrest and three years probation, and was ordered to repay $92,000. This, says Keating, is one of the harshest convictions ever seen in Ontario’s Durham Region for abuse involving power of attorney (POA).

Budkowski’s mother had Alzheimer’s. Her death earlier this year, at the age of 95, left unanswered questions about her POA document. “Did my mother know what she was signing?” asks Budkowski. “Or was it even her hand that signed it? I have my suspicions.”

POA abuse stories are surfacing in every community across Canada. The Canadian government estimates that as many as ten percent of seniors are affected. “And financial abuse involving powers of attorney is the most rampant,” says Laura Watts, national director of the Canadian Centre for Elder Law in Vancouver. “Abuses are grossly under-reported. Victims are reluctant to come forward if the exploiter is a family member, due to feelings of shame, fear of exposure and even fear of being denied access to grandkids.”

The situation—which Watts describes as “a national crisis”—is forcing legislators, the courts and police to re-evaluate their responses to reports of POA misuse. “I’ve heard over and over from seniors who have taken their complaints to police, only to be told this is a civil matter,” says Brian Trainor, a retired Saskatoon police officer and one of the first in Canada to investigate POA abuse cases. Keating has heard similar complaints, and maintains that a change is necessary. “The whole system needs to be revamped,” he says. “We need to start recognizing theft by POA for what it really is: a crime.”

A power of attorney is a document that legally appoints one individual (the “attorney”) to act on another’s behalf. Each province has its own POA legislation and terminology, but generally speaking, there are two types of POAs: those that grant authority to manage assets and those that cover personal care.

For a POA that grants authority to manage assets, you can decide whether you want it to be continuing or noncontinuing. A continuing POA will stay in effect even if you become mentally incapable, while a noncontinuing POA will not.

Experts warn that too many people assign POAs without first educating themselves or obtaining even minimal legal advice. But unless you hire a qualified expert, such as a trusted lawyer with POA experience, you could be leaving yourself open to POA abuse.

In one case, a Saskatoon financial planner by the name of Hartley Paul Simon garnered the trust of three seniors while advising them on their investments and taxes. He convinced them that, as their financial planner, he was best suited to be granted their POA.

Simon proceeded to defraud the seniors of nearly $200,000 over a period of more than five years, until the financial-services manager at a credit union noticed some unusual activity in one of the victim’s accounts and called police.

“We got a search warrant, and he pleaded guilty,” says Trainor, who investigated the case. In 2008 Simon was sentenced to 18 months in prison. In his sentencing, the judge said, “Trust is one of society’s most valued attributes, and when that trust is breached, the moral fabric of society is severely damaged.”

Although a POA abuser can be anyone, such as an opportunistic caregiver or neighbour, Watts warns that the vast majority of them are immediate family members and, more often than not, the senior’s own children. This leads to unique psychological trauma.

Experts agree that instances of exploitation through POA are increasing, and many forecast a fast-brewing “perfect storm,” fuelled by an aging population and rising rates of dementia. Says Watts, “We’re seeing a huge intergenerational transfer of wealth between today’s elders, a frugal generation who saved their money, and their offspring, the baby boomers.” The latter is a generation renowned for spending more money than they make; many live beyond their means, expecting their retirement to be financed by their inheritance.

Det. Ed Lum, who heads the Crimes Against Seniors Unit for the Hamilton Police Service, points out that in many instances, elderly victims are helpless to defend themselves or to fight back against exploitative POA holders. “Some victims are stripped of their life savings,” he says, referring to a recent case involving a 63-year-old retired truck dispatcher convicted of stealing over $400,000 from his parents’ bank accounts. “He had been granted power of attorney for both parents when they were already hospitalized,” says Lum.

There is a surprising lack of safeguards against the misuse of POA. Those holding POA in Canada aren’t automatically required to prove that the expenditures they make are in the principal’s best interest, nor are they typically required to show anyone the records of their financial transactions. It’s a situation that makes seniors easy targets

Cheryl Penner of the RBC Law Group concurs, adding, “I’ve witnessed hundreds of incidents of financial abuse of seniors and theft by power of attorney, perpetrated by adult children, nieces, nephews, grandchildren and others.” Describing these exploiters as “smiling, charming con artists,” she highlights a few of their schemes: “They trick their relatives into adding their names to bank accounts and investment certificates. They withdraw pensions and investment income as soon as they’ve been deposited. They fraudulently use the senior’s bank card or credit card. They even redirect the senior’s mail through Canada Post.”

Another commonly used tactic of POA abusers is to sell or liquidate the senior’s home in order to get their hands on its cash value, says Ann Soden, a Montreal lawyer specializing in elder law, who heads the National Institute of Law, Policy & Aging. Selling someone’s house from under them, she says, often leads to the senior being forced into a nursing home, further enhancing the abuser’s control over them. “It’s all about greed and power and control,” Soden says.

Indeed, the complexity of schemes and scams that can be perpetrated using POAs is limited only by the human imagination. Soden tells of a recent case she was involved in: A son with POA convinced his mother that her seniors’ residence would be forced to charge less if she hid all her money—about $700,000—in his name in an offshore account, which would also bring her a greater rate of return.

Upon his mother’s death, the man claimed the $700,000 had evaporated, due to the global recession, and fled Canada. Soden says the mother’s bank holds records that would likely show the true money trail, “but the bank refuses to divulge these records, hiding behind the technicality that the accounts are no longer in the mother’s name.” As a result, other family members, the beneficiaries of the mother’s will, have had to hire a private investigator to hunt down the elusive son.

Curtailing POA abuse will require a coordinated effort by all segments of society currently serving seniors, including banks, social agencies and medical professionals. Frontline workers—such as the bank employee in the Simon case—need to learn to recognize the early signs of this activity and to report their suspicions; this may call for legislation protecting whistle-blowers. The banking industry will also need to come up with guidelines to facilitate early detection of POA misuse, as well as demand its members co-operate with those alleging POA fraud.

Law enforcement, of course, has the most important role. Sgt. John Keating says police officers need to be taught to treat POA abuse as a criminal act, and hopes judges will start imposing harsher sentences, to create a serious deterrent. Concerning elder abuse, Chief Justice Beverley McLachlin advocates using the law “to minimize the barriers to criminal and civil prosecution, as was done a few decades ago in the case of child abuse.”

University of Western Ontario law professor Robert Solomon says the proceedings for POA cases can become “incredibly expensive, time consuming and acrimonious.”

Tony Budkowski vehemently agrees, citing how he has to spend his own money to have his sister removed as the executor of their mother’s estate, even though his sister has been found guilty of stealing. “Only victims of this crime fully understand the gut-wrenching emotion of being victimized twice, first by someone they know and then by the faceless process of trying to get justice.”

HOW TO STOP POWER OF ATTORNEY ABUSE

What can average Canadians do to protect themselves from the misuse of power of attorney? Here are some tips:

1) “One size fits all” doesn’t fit all. The standard POA form downloaded from your provincial government website or bought off the shelf usually contains the bare minimum for a POA to be legally recognized. It’s a one-size-fits-all form. Since your situation is unique, consider this form to be nothing more than a canvas on which you will apply your own circumstances and wishes. “You should always get an experienced lawyer for your POA, especially if you have any kind of savings,” says Montreal lawyer Ann Soden.

2) Choose your powers carefully. Lay out exactly what powers you want to delegate to the person you’ve given POA. For example, you can prohibit this person from making gifts, taking out loans or selling property you’ve specifically bequeathed. “Consider adding a stipulation that your ‘attorney’ has to provide regular accounting statements to a third party, such as an accountant,” says Soden, “and give this third party the authority to act if improprieties are found.”

3)Keep it personal. Never execute a POA document that wasn’t personally and privately initiated by you. Prepare it when you are in good health and before your senior years, since life can bring surprises—such as a car accident, heart attack or devastating illness—at any time. And revisit your POA document every couple of years.

4) Get expert legal advice. If you use a lawyer to draft your POA document, be aware he, too, may be providing you with a standard one-size-fits-all form. “When choosing a lawyer, make sure that powers of attorney are part of his regular practice-and preferably he specializes in wills and estate planning,” advises Cynthia Hiebert-Simkin, an executive member of the Canadian Bar Association’s National Wills, Estates and Trusts section.

5) Children aren’t angels. Be aware that a POA document may be the catalyst that transforms a good child or a friend into an abuser. Sgt. John Keating of the Durham Regional Police says that in some circumstances, a POA document is tantamount to “waving a juicy bone in front of a hungry dog. The temptation is just too great.”

6) Character matters. Consider the repercussions of granting POA to only one person. Will it expedite decision-making or create a POA dictator? “Naming two or more individuals to act jointly can be a means of creating checks and balances,” Soden suggests. But make sure they can work harmoniously. And choose people willing and capable of carrying out the responsibility. Ask yourself how well you know these people, even if they are your children. Do you know only what they want you to know? What’s their real financial situation? Is there substance abuse? Are their marriages on the rocks?

Reprinted with permission from the December 2010 issue of Reader’s Digest magazine. Copyright (c) 2010 by Reader’s Magazines Canada Limited. Further reproduction or distribution strictly prohibited.